Welcome to Texas justice: You might beat the rap, but you won't beat the ride.

Tuesday, January 10, 2012

Williamson County prosecutors playing defense

Williamson County District Judge Ken Anderson, reports Chuck Lindell at the Austin Statesman, filed a brief with the court which "accused [exoneree Michael] Morton's lawyers of employing falsehoods, incomplete facts and an incorrect reading of trial records to accuse Anderson of hiding evidence that could have spared Morton from a receiving a life sentence for a crime he did not commit." See Anderson’s brief here (pdf) and accompanying exhibits here (pdf).

Meanwhile Williamson County DA John Bradley is reportedly out blockwalking for his campaign, just as Wilco Watchdog has discovered the internet treasure trove that is the incumbent's collection of 7,500+ posts at the Texas District and County Attorneys Association's user forum, posting a comparison of Bradley's public media statements about disclosing exculpatory evidence with his running commentary among friends on the TDCAA site. My favorite bit: In a brilliant moment of understatement, one forum user responded to Bradley's authoritative disdain for handing over exculpatory evidence with the observation, “The contention that there is no constitutional obligation to turn over exculpatory evidence when the defendant pleads guilty seems highly dubious.” Dubious, indeed! Regrettably, the blogger doesn't provide permalinks for the quotes, though I'd read most or all of it before. See the full Watchdog post for more.

For those who haven't seen it, if you're a regular Grits reader and are interested in the topics this blog covers, I encourage reading the TDCAA forum purely for its entertainment value, as evidenced by the quotes pulled out by the Watchdog. (Their site appears to be inexplicably down, hopefully not in order to expunge years of dialogue as a result of the Watchdog's post!) A lot of interesting discussions happen at the TDCAA user forum on subjects I don't see addressed anywhere else, for good and sometimes for ill. One caveat: Before ever quoting the forum, as the Watchdog did, always get a screen shot or cut and paste the string into a separate document. Mr. Bradley in particular, but other forum participants, too, have been known to change or delete comments when they were cited in the media.

The primary battle for Williamson County DA this year is shaping up to be a real hoot!

Here are two additional post made by John Bradley, which give you some idea of how far he is willing to go to hide cases like Michael Morton's. The below topic of discussion was, "Records retention & habeas"

JB Member posted 10-20-07A better solution would be to impose a time limit on filing a writ of habeas corpus. Why should we continue waiting 10 and 15 years for a defendant to file a writ? Rarely is the wait justified, except by the defendant's boredom and denial of parole. We have a time limit for a capital writ, so why not get one for noncapital writs?

For serious felonies (sentences of 20 years or more and no appeal), I am considering having the court reporter always prepare a transcript of the plea and sentencing. That gets put in the file to await the writ, which is nearly inevitable.

The only other records that are usually needed to reply to a writ are the plea papers, which have usually been preserved by being digitized and archived. We can download those from our county database. Add an affidavit from the defense lawyer (if he is still alive) and we are usually done.

JB Member posted 10-23-07I can't think of a single local example of how the retention schedule hurt a case. The only case in which loss of records created a problem was one in which the defendant, while his case was in trial, fled. Decades later, the court reporter destroyed her notes. Upon arrest and sentencing, the defendant gave notice of appeal. Case law suggests that defendant loses, even though the court reporter should have held on to the notes until conclusion of the case. Defendant failed to ask that the notes be preserved.

Another source of amusement about the TDCAA site is that they used to offer a book by one A.P. Merillat, an investigator for the prosecution unit that specializes in prison crimes, on the topic of future dangerousness in capital sentencing. Horribly badly written and hysterical in tone, it was full of anecdotal material and had little real substance. Erroneous testimony from Merillat resulted in the reversal of a Bexar County capital case, and concerns were being raised about the accuracy of his anecdotes about prison violence, and the TDCAA seems to have now pulled any reference to the book from the site. Presumably he is no longer viewed as a "true gift to the TDCAA and prosecutors", as he was described in the foreword to the book.

Uh, has anyone read that (lengthy) response by Anderson? It sure seems to knock some holes in the IP's theory of what happened, and backs it up with some pretty interesting information I had not yet seen reported (like the fact that her check cashed after her death wasn't forged at all but actually deposited into the couple's own account, and that Morton's trial lawyers actually knew about the boy's ID of the real killer).

Interesting stuff--curious to hear what others think after reading it.

I scanned the posts from the Wilco blog, and can only say that much of what Bradley says qualifies as obscenity of the worst type. As for his Brady discussion- and the analysis changing after a plea-he may have a point, but this only highlights a defense attorney's duty prior to determining if a plea or trial is appropriate- let me elaborate- around a year ago in New Braunfels, two heros were both charged with a dope crime- one plead, the other picked a jury- during trial,on cross, the state's tox expert discovered a misplaced decimal point; the plea was to a 2nd, while the amount was SJF wt. in reality- this is not courthouse rumor- Dib Waldrip, a district ct judge in NB, blogged on Evidence Prof about the case, and I was in the courthouse when charges were dismissed in the trial- as for the plea? too bad, so sad - Brady, in my opinion, is simply Crawford in different guise; except when the D insists on it, entering a plea without discovery borders on the unethical- and there are many prosecutors who are more than happy to assist you in the act - John Bradley's analysis is, infortunately, taught by him and other high profile prosecutors to prosecutors far and wide- he encourages any ADAs he hires to run for office and spread this poison even further- WILCO did a good thing releasing that blog info; as for Anonymous's question at 9:29, read the concurring opinion in U S v Wade as to the duty of a defense attorney; a Prosecutor's duty, in contrast, is to seek justice- the majesty and power of the State apparatus against a citizen accused imposes different duties on adverse parties

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